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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 635­640 OF 2018

Mrs. Kanika Goel       …..Appellant(s)   :Versus:

State of Delhi through S.H.O.  and Anr.               ....Respondent(s)

J U D G M E N T

A.M. Khanwilkar, J.

1. These appeals take exception to the judgment and orders

passed by the High Court of  Delhi  at New Delhi  dated 16th

November, 2017,  1st December, 2017 and 6th December, 2017,

in Writ Petition (Criminal) No.374 of 2017 and Criminal M.A.

No.2007 of 2017, whereby the writ petition filed by respondent

No.2 for issuing a writ of habeas corpus for production of his

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minor daughter M (assumed name), who was about 3 years of

age at the time of filing of the writ petition and for a direction

for return of M to the jurisdiction of the competent Court in

the  United  States  of  America in compliance  with the  order

dated 13th January, 2017 passed by the Circuit Court of Cook

County, Illinois,  USA, came to be allowed.  The  Delhi  High

Court directed the appellant  to comply with the directions as

M was in her custody, the appellant being M’s mother.  

2. The respondent No.2 asserted that he was born in India

but presently is a citizen of USA since 2005. He is working as

the CEO of a Company called ‘Get Set Learning’. The appellant

is  his  wife  and mother  of the  minor  child  M.  She is  a  US

Permanent Resident and a “Green Card” holder and has also

applied for US citizenship on 2nd  December, 2016. At the

relevant time, she was a certified teacher in the State of Illinois

and was employed as a Special Education Classroom Assistant

in Chicago Public Schools. The respondent No.2 and the

appellant got  married  on  31st  December,  2010  as  per  Sikh

rites, i.e. Anand Karaj ceremony, and Hindu Vedic rites in New

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Delhi.  It was clearly understood between both the parties that

the  appellant,  after  marriage,  would reside  with respondent

No.2 in the USA. Eventually, the appellant travelled to the USA

on a Fiance Visa and got married to respondent No.2 again on

19th March, 2011 at Cook County Court in Chicago, Illinois.

Before the  marriage, the  parties entered into a  Pre­Nuptial

Agreement dated 20th October, 2010 enforceable in accordance

with the laws of the State of Illinois, USA. The appellant then

took employment as a teacher in Chicago Public School and

also secured a US Permanent Citizen Green Card. The

appellant became pregnant and gave birth to M on 15th

February, 2014 in USA. M is thus a natural born US citizen

and was domiciled in the State of Illinois, USA from her birth

till she was clandestinely removed by the appellant in

December 2016 under the guise of undertaking a short trip to

New Delhi to meet the appellant’s parents.   

3. The appellant was scheduled to return to Chicago on 7th

January, 2017 but she went missing and filed a petition under

Section 13(1) of the Hindu Marriage Act, 1955 (for short “the

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1955 Act”) being H.M.A. Case No.27 of 2017 seeking

dissolution of marriage on the ground of cruelty, along with an

application under Section 26 of the 1955 Act on 7th January,

2017 seeking a restraint order against respondent No.2 from

taking M away from the jurisdiction of Indian Courts. A notice

was issued thereon to respondent No.2, made returnable on

11th January, 2017.  

4. The respondent No.2, however, filed an emergency

petition for temporary sole allocation of parental

responsibilities and  parenting time in  his favour or in the

alternative, an emergency order of protection for possession of

his minor daughter M, before the Circuit Court of Cook

County, Illinois on 9th  January, 2017. A notice of emergency

motion was served on the appellant by e­mail, informing her of

the proposed hearing on 13th January, 2017.  

5. In the meantime, on 11th January, 2017 the Family Court

at  New Delhi issued a  fresh notice to respondent No.2 and

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passed an ex­parte order on the application filed by the

appellant under Section 151 of the Code of Civil Procedure,

restraining respondent  No.2 from removing the  minor  child

from the jurisdiction of that Court until further orders.  

6. The respondent No.2 on the other hand, caused to file a

missing person complaint  on 13th  January,  2017 before the

SHO, Vasant Kunj (South), P.S. New Delhi, which was

acknowledged  by the  Police  Station on 14th  January,  2017.

Besides the said complaint, respondent No.2 moved the

Circuit Court of Cook County, Illinois, USA on 13th  January,

2017  when an ex­parte order  was passed for interim sole

custody of the minor child.  The said order reads thus:

“1) The child M born on 15.02.2014, in Chicago, Illinois and having resided in Chicago solely for her entire life (specifically at 360 East Randolph Street, Chicago, IL 60601) is also a US citizen. 2) The child is a habitual resident of the state of Illinois, United  States of  America  having  never resided  anywhere else. Illinois is the home state of the child pursuant to the Uniform Child Custody Jurisdiction Enforcement Act.  3) Karan Goel is the natural  father of  the minor child and granted interim sole custody of the minor child. Child is to be immediately returned to the residence located in Cook County, Illinois, USA by Respondent.

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4) The Cook County, Illinois Court having personal and subject matter jurisdiction over the parties and matter. 5) All  further issues regarding visitation, child support are reserved until further Order of Court.”

7. The appellant did not comply with the order of the Circuit

Court of Cook County, Illinois, therefore, respondent No.2 filed

a writ petition before the Delhi High Court on 1st  February,

2017, to issue a writ of habeas corpus and direct the appellant

to  produce  the minor child  M and cause her return to  the

jurisdiction of the Court in the United States, in compliance

with the order dated 13th January, 2017 passed by the Circuit

Court of Cook County, Illinois, to enable the minor child to go

back to  United  States and if the appellant failed to  do so

within a fixed time period, to direct the appellant to

immediately hand over the custody of the  minor child to

respondent  No.2 (writ  petitioner) to  enable  him  to take the

minor child to the jurisdiction of the US Court.  

8. This  writ  petition was contested by  the  appellant.  The

High Court issued  interim orders  including regarding giving

access of the minor child to respondent No.2 in the presence of

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the appellant and  her parents. Finally, all the contentious

issues between the parties were answered by the High Court

by a speaking judgment and order dated 16th November, 2017,

in favour of respondent No.2, after recording a finding that the

paramount interest of the minor child was to return to USA, so

that she could be in her natural environment. To facilitate the

parties to have a working arrangement and to minimize the

inconvenience, the Division Bench of the High Court issued

directions in the following terms:  

“139.  In the light of the aforesaid, we are more than convinced that respondent No.2 should, in the best interest of the minor child M, return to USA along with the child, so that she can be in her natural environment; receive the love, care  and attention of  her father  as well  –  apart from her grandparents, resume her school and be with her teachers and peers. Pertinently, respondent No.2 is able­bodied, educated, accustomed to living in Chicago, USA, was gainfully employed and had an income before she came to India in December 2016 and, thus, she should not have any difficulty in finding her feet in USA. She knows the systems prevalent in  that  country,  and adjustment for  her in  that environment would certainly not  be an issue. Accordingly, we direct respondent no.2 to return to USA with the minor child M. However, this direction is conditional on the conditions laid down hereinafter.

140. Respondent No.2 has raised certain issues which need to be addressed, so that when she returns to USA, she and

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the minor child do not find themselves to be in a hostile or disadvantageous environment. There can be no doubt that the return of respondent No.2 with the minor child should be at the expense of the petitioner; their initial stay in Chicago, USA, should also be entirely funded and taken care of by the petitioner by providing a separate furnished accommodation (with all basic amenities & facilities such as water, electricity, internet connection, etc.) for the two of them in the vicinity of the matrimonial home of the parties, wherein they have lived till December 2016. Thus, it should be the obligation of the petitioner to provide reasonable accommodation sufficient to cater to the needs of respondent No.2 and the minor child.   Since respondent No.2 came to India in  December 2016 and  would, therefore, not have retained her job, the petitioner should also  meet all the expenses of respondent No.2 and the minor child, including the expenses towards their food, clothing and shelter, at least for the initial period of six months, or till such time as respondent No.2 finds a suitable job for herself. Even after respondent No.2 were to find a job, it should be the responsibility of the petitioner to meet the expenses of the minor daughter M, including the expenses towards her schooling, other extra­curricular activities, transportation, Attendant/ Nanny and the like, which even earlier were being  borne  by the  petitioner. The  petitioner should also arrange a vehicle, so that respondent No.2 is able to move around to attend to her chores and responsibilities.  

141. Considering that the petitioner had initiated proceedings in USA and the respondent No.2 has been asked to appear before the Court to defend those proceedings, the petitioner should also meet the legal expenses that respondent No.2 may incur, till the time she is not able to find a suitable job for herself. However, if respondent no.2 is entitled to legal aid/assurance from the State, to the extent the legal aid is provided to her, the legal expenses may not be borne by the petitioner.

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142.  The  petitioner should also  undertake that after the return of the minor child M with respondent No.2 to USA, the custody of M shall remain with respondent No.2 and that he shall not take the minor child out of the said custody by use of force. He should also undertake that after respondent No.2 lands in Chicago, USA, the visitation and custody rights qua  the  parties,  as  may be  determined  by the  competent Court in USA, shall be honoured.  

143.  Respondent No.2 has also expressed apprehension that the petitioner would seek to enforce the terms of the Pre­Nuptial Agreement entered into between the parties. Since the said agreement has been entered into in India, its validity has to be tested as per the Indian law. Respondent No.2 has already initiated suit for declaration and permanent injunction to challenge the said Pre­Nuptial Agreement dated 22.10.2010.  We have perused the said agreement and we are of the view the petitioner should not be permitted to enforce the terms of this agreement in USA, at least till the said suit preferred by the respondent No.2 is decided. The petitioner should, therefore, give an undertaking to this Court, not to rely upon or enforce the said Pre­Nuptial Agreement to the detriment of respondent No.2 in any  proceedings either in  USA, or in India. The undertaking shall remain in force till the decision in the suit for declaration and injunction filed by respondent No.2 challenging validity of the Pre­Nuptial Agreement. This undertaking shall, however, not come in the  way of the petitioner  while  defending  the said  suit  of the respondent No.2.  

144.  With the aforesaid arrangements and directions, in our view, respondent  No.2 can possibly have no objection to return to USA with M. The comfort that we have sought to provide to respondent No.2, as aforesaid, is to enable her to have a soft landing when she reaches the shores of USA, so that the initial period of at least six months is taken care of for her, during which period she could find her feet and live on her own, or under an arrangement as may be determined

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by the competent Courts in USA during this period. At this stage, we are not inclined to direct that the custody of M be given to the petitioner so that he takes her back to USA. M is a small  child  less than 4 years of  age,  and that  too, is a female child. Though she may be attached to the petitioner – her father, she is bound to need her mother – respondent no.2 more. In our  view,  once M returns  to  USA with  her mother, i.e. respondent No.2, orders for custody or co­ parenting should be obtained by the parties from the competent  Courts in  USA.  Moreover, it  would  be for the Courts in USA to eventually rule on the aspect concerning the financial obligations and responsibilities of the parties towards  each other  and  towards  the  minor  child  M – for upbringing the minor child – M independent of any directions issued by this Court in this regard.

145.  The petitioner is directed to file his affidavit of undertaking in terms of paras 140 to 144 above within ten days with advance copy of the respondents. The matter be listed on 01.12.2017 for our perusal of the affidavit of

undertaking, and for passing of final orders.”

9. By this  judgment and order passed by the High Court

and the directions issued, as reproduced hitherto, the

substantive issues inter se the parties were answered against

the appellant to the extent  indicated. In continuation of the

aforementioned directions, a further order was passed on 1st

December, 2017 by the High Court which reads thus:

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“1.  In terms of the directions contained in our judgment dated 16.11.2017, the petitioner  Karan Goel  has filed the affidavit dated 20.11.2017. A perusal of the affidavit shows that the petitioner has undertaken and consented to abide by all the conditions imposed upon him, so that respondent no.2 could return to USA with the minor child.

2.  Respondent no.2 has also filed a counter­affidavit to the said affidavit of the petitioner. Respondent no.2 has raised the issue that the petitioner has not particularized the amounts and facilities that the petitioner would provide in case respondent no.2 were to return to USA with the minor child.  

3.  The petitioner is  present in  Court  with  his  parents. The petitioner has tendered in Court the details/particulars of the proposed financial aid in terms of our judgment. The said details/ particulars read as follows:

‘1.  Upon Respondent No.2 giving a date/this Hon’ble Court fixing a date on which she and minor child  M will depart from Delhi for  Chicago, Illinois, USA,  the Petitioner  shall  do  the  following at least  3 [three] days prior to their departure date:­

(i) Book  airline tickets on  United  Airlines  with  a non­stop flight from Delhi to USA for minor child M and Respondent No.2; (ii) Provide a hotel room at The Hyatt Regency (located ~7 minute walk from minor child M’s preschool) for the first seven (7) days after landing in Chicago to enable Respondent No.2 to sign leases for (a) accommodation and (b) a car; and

2.   The Petitioner is/  was already  paying [directly out of his salary] the following amounts for minor child M and shall  continue to do so  in compliance of the directions  of this  Hon’ble  Court (all amounts in  US Dollars = USD):­

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(i) ~$2,100/month Preschool tuition at Bright Horizons Lakeshore East where she was enrolled five days a week; and (ii) ~$232/month for health insurance via Blue Cross Blue Shield of Illinois.

3.   In addition to point 2 above, the Petitioner shall pay the following amounts (all amounts in US Dollars =USD) for a total of $4,200/month to Respondent No.2 in advance for the first month [by transferring the said amount into a joint account prior to Respondent No.2 and minor child M taking off from Delhi] and thereafter by the 28th of every month for the subsequent month [for the initial period of six months]:­  

(i)   $2,600/month as rent for a fully furnished apartment  with high­speed  internet,  air  conditioning and heating, water, garbage disposal, and parking for a vehicle;  

(ii)  $400/month for Respondent No. 2’s health insurance;  

(iii) $1,000/month in expenses for food, shelter, and clothing for minor child M and Respondent No. 2; and

(iv)   $200/month for a car lease and car insurance.  

4.   In case legal aid / assurance is not available / provided to Respondent No.2, the Petitioner shall give an additional amount of $1,500/ month to Respondent No.2  for  her legal  expenses  for the first  six  months after her and minor child M’s return to Chicago, Illinois, USA’.  

4.   We have also separately recorded the statement of petitioner on oath, wherein he has undertaken to this Court to abide by the offer made by him in terms of our decision. He has also undertaken that in case of any breach of the said stipulation, respondent no.2  may enforce the same before the competent Court in USA.

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5.   To ensure compliance of the aforesaid obligation, the petitioner has offered that he shall deposit an amount US$ 25,000 in an escrow account, which shall be operated upon orders of the competent Court in Cook County, Illinois, USA. The said account shall be operatable at the instance of respondent  no.2 in  case  of  non compliance  of  any  of the condition and to the extent it becomes necessary, under the orders of the said Court.

6.  The petitioner seeks a short adjournment to produce the relevant documents in that regard before this Court.  

7.  Since the petitioner and his parents are in India, and it is  submitted  that the petitioner  has  not  met  his  minor daughter since March 2017, it is agreed that the petitioner and his parents shall be allowed to meet the minor child M today, tomorrow and day after tomorrow at DLF Promenade Mall, Vasant Kunj, New Delhi.  

8.  Today’s meeting shall take place between 6:00 p.m. to 8:00 p.m., and on Saturday and Sunday, the meeting shall take place from 11:00 a.m. to 2:00 p.m. The petitioner has desired that the meeting may take place exclusively.  

9.  Since respondent no.2 has apprehensions, the petitioner  has  offered to  and  has  deposited  his  American Passport with the Court Master. The Court Master shall seal the same in Court and thereafter the same be handed over to the Deputy Registrar concerned to be kept in safe custody. The same shall not be parted with unless so ordered by this Court.  

10. The petitioner has assured that the child shall  not be taken away unauthorisedly  and shall  be  duly returned  to respondent no.2 at the end of the meeting on each date.  

11.  List on 06.12.2017 for further directions. On the next date, the child  may be  brought to the  Court so that the petitioner and his parents are able to meet the child in the Children’s Room at the Mediation Centre between 2:30 p.m. to 4:30 p.m.

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12. Order dasti under the signatures of the Court Master.”

10.  Again, on 6th December, 2017, another order was passed

to formally dispose of the writ petition finally in the following

terms:

1. “Mr. Jauhar has tendered in  Court the affidavit of undertaking sworn by the petitioner along with three annexures, which are: (i) A statement from  Citibank,  USA in respect of joint account held by the petitioner and respondent No.2; (ii) An affidavit of Molshree A., Sharma, ESQ., a partner at the law firm of Mandel, Lipton, Roseborough & Sharma Ltd., based in Chicago; and (iii) Documents to show deposit of US$25,000 in an escrow account operated by the aforesaid law firm. 2. The petitioner has stated that he has already deposited US$25,000 into his attorney’s escrow account. The affidavit of Molshree A., Sharma affirms that the said escrow account may be operated by respondent No.2/ Kanika Goel  in the event of failure of the petitioner/ Karan Goel in meeting his obligations as per his undertaking given to this Court. 3. We are satisfied with the aforesaid arrangement made by the petitioner to secure the interests of respondent No.2 and the minor child in terms of our decision dated 16.11.2017. 4. In these circumstances, we now direct respondent No.2 to return to USA along with the minor child M within two weeks from today, failing which the minor child M shall be handed over to the petitioner, to be taken to USA. 5. We may observe that learned counsel for respondent No.2 has sought more time on the ground that respondent No.2 wishes to assail the decision dated 16.11.2017 and that the Supreme Court shall  be closed for Winter Vacation  in later part of  December, 2017  and early part of January, 2018. However, we are not inclined to grant any further time

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for the reason that it is  imperative for respondent No.2 to return to USA on or before 23.12.2017, and if she does not so return, her return may not be permitted by the Immigration Department of USA without further compliance being made by her. We cannot permit a situation to arise where respondent No.2 is able to defeat the direction issued by this Court on account of her own acts & omissions. 6. The passport of the petitioner deposited in this Court is directed to be returned forthwith. The said passport be returned to  Mr. Prabhjit Jauhar, larned counsel for the petitioner. The said passport shall be retained by Mr. Jauhar so as to enable the petitioner and his parents to meet the child M, while they are in New Delhi, India. Mr. Jauhar shall return the passport to the petitioner only at the time when the petitioner has to return to USA, after ensuring that the custody of the child is with respondent No.2. 7. The meeting between the petitioner and his parents, on the one hand, and the child, on the other hand, shall be undertaken as per the arrangement worked out by us earlier, i.e. two hours every working day, and three hours at the weekends, as mutually agreed between the parties.  

8. The petition stands disposed of in the aforesaid

terms.”

11. Being aggrieved by the aforesaid  judgment and orders,

the  appellant,  being the  mother  of the  minor  child  M,  has

approached this Court by way of Special Leave under Article

136 of the Constitution of India. This Court issued notice on

15th  December,  2017,  when it passed the following interim

order:

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“O R D E R Issue notice. As  Dr. Abhishek  Manu  Singhvi and  Mr. R.S. Suri,

learned senior counsel along with Mr. Prabhjit Jauhar, learned counsel has entered appearance for the respondent No.2, no further notice need be issued.

Counter affidavit be filed within two weeks. Rejoinder affidavit, if any, be filed within a week therefrom.

Let the matter be listed on 24th January, 2018. As an interim measure, it is directed that the

arrangements  made by the  High Court for the visitation rights shall remain in force.  The  petitioner­wife shall  not create any kind of impediment in the meeting of the father with the child.

In the course of hearing, we have also been apprised by Dr. Singhvi that the Green Card issued in favour of the petitioner­wife is going to expire on 22nd December, 2017. Be that as it may, If, eventually, the petitioner loses in this proceeding and the respondent No.2 succeeds, the expiration of the Green Card cannot be a ground to deny the custody of the child to the father. Needless to say, if the petitioner wife intends to go to United States of America and gets the Green Card renewed, it is open for her to do so. We may also record that the husband has acceded to, as stated by the learned counsel for the respondent No.2, that he shall not implicate her in any criminal proceeding.”

In continuation of the aforementioned interim arrangement, a

further order was passed by this Court on 24th January, 2018,

which reads thus:

“O R D E R Heard Mr.  Kapil  Sibal, learned senior  counsel  along

with Ms. Malavika Rajkotia, learned counsel for the petitioner and Dr. A.M.Singhvi, learned senior counsel along with Mr. Prabhjit Jauhar, learned counsel for the respondents.

Though, we are not inclined to interfere with the interim arrangement  made  by the  High  Court  yet, regard

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being had to some grievances of both the parties, we intend to pass an order clarifying the position.

Having heard learned counsel for the parties, it is directed as follows:

(i) Whenever respondent No.2 is available in India, he shall intimate the petitioner by E­mail and also forward a copy of the said E­mail to the counsel for the petitioner so that she can make the child available for meeting  with the father  at  Promenade  Mall,  Vasant Kunj between 5.30 P.M. to 7.30 P.M. on weekdays and 11.00 A.M. to 2.00 P.M. on holidays when the school is closed. (ii)  When  the father  will be  meeting the child, they shall meet without any supervision.  (iii)  When the father is not in India, there can be communication/interaction through Skype at about 7.30 P.M.(Indian Standard Time) or any other mode on line.  (iv) The passport of the child, which is presently with the father, shall be handed over to the mother for a period of one week so that she can take appropriate steps to complete certain formalities for admission of the child in a school. This direction is without prejudice to the final result in the special leave petition. The passport shall be returned by Ms.Malavika Rajkotia, learned counsel for the petitioner to Mr.Prabhjit  Jauhar, learned counsel for the respondents.

Let the matter be listed on 19.02.2018 at 2.00 P.M. for final disposal.”

These are the relevant interim orders, which were to operate

until the final disposal of the appeals. On 18th May, 2018, a

grievance was made before this Court about non­cooperation

by the appellant, which has been recorded as under:

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“O R D E R

As mentioned in the first hour, the matter is taken up today.  Be it  noted,  we have listed  the  matter today  as it relates to the conversation right of the father with the child.

In the course of hearing, Mr. Prabhjit Jauhar, learned counsel appearing for the respondent­father submitted that the directions issued by this Court on earlier occasion relating to Skype contact are not being complied with.

Ms. Malavika Rajkotia, learned counsel appearing for the  appellant  submitted  that there  has been no deviation and in  any case, the  mother  does  not intend to anyway affect, indict or intervene in the right to converse by Skype. Ms. Rajkotia has assured this Court that her client has not given any occasion to raise any grievance and if any grievance is nurtured by the father, the same shall be duly addressed, so that the order of this Court is duly complied with.

We are sure, the parties shall  behave like compliant litigants.”

The hearing was concluded and the interim arrangement as

directed by this Court was to be observed by the parties until

the pronouncement of the final judgment.  

12. The appellant,  being the mother of the minor child M,

has assailed the decision of the High Court for having

overlooked the rudimentary principles governing the issue of

invoking jurisdiction to issue a writ of habeas corpus in

respect  of  a  minor  child  who was  in lawful  custody of  her

mother. According to the appellant, the High Court has

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completely glossed over or to put it differently, misconstrued

and  misapplied the  principles  of  paramount interest of the

minor girl child of tender age of about 4 years. Similarly, the

High Court has glossed over the doctrine of choice and dignity

of the  mother of a  minor girl child keeping in  mind the

exposition in K.S. Puttaswamy & Anr. Vs. Union of India &

Ors.1  The High Court has also failed to take into account that

the intimate contact of the minor child would be her mother

who was her primary care giver and more so, when she was at

the relevant time in the company of her mother.   The

appellant, being the mother, had a fundamental right to look

after her minor daughter which cannot be whittled down or

trivialized on the considerations which found favour with the

High Court. The welfare and paramount interest of the minor

girl child would certainly lean towards the mother, all other

things being equal. The role of the mother of a minor girl child

cannot be reduced to an appendage of the child and the

mother cannot be forced to stay in an unfriendly environment

1  (2017) 10 SCC 1

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where she had been victim of domestic violence inflicted on

her. This would be so when the mother was also a working

woman  whose career would be at stake in the event the

directions given by the High Court were to be complied with in

letter and spirit. The High Court ought to have adopted a child

rights based approach but the reasons which weighed with the

High  Court, clearly  manifest that it  was influenced  by the

values of pre­constitutional morality standard. The approach

of the  High Court,  of  delineating  an arrangement,  which  it

noted as the lowest prejudice option to the mother,   has no

place for deciding the issue of removing the custody of a minor

girl child of tender age from her mother and giving it to her

father for being taken away to her native country.   The High

Court has misunderstood and misapplied the principle

expounded in  Nithya Anand Raghavan Vs. State (NCT of

Delhi) & Anr.,2   and    Prateek Gupta Vs. Shilpi Gupta &

Ors.3 The High Court has completely overlooked the autonomy

of the appellant inasmuch as the directions given by the High

2  (2017) 8 SCC 454 3  (2018) 2 SCC 309

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Court would virtually subjugate all her rights and would

compel her to stay in an unfriendly environment at the cost of

her career and dignity. The arrangement directed by the High

Court can, by  no standard, be said to be a just and fair

muchless collaborative arrangement to be worked out between

the parents, without compromising on the paramount interest

and welfare of the minor girl child. The High Court committed

a manifest error in answering the issue of best interest of the

minor girl child, inter alia on the basis of the provisions of the

Juvenile Justice Act and disregarding the crucial fact that the

minor girl child was presently staying with her mother along

with her extended family, which she would be completely

deprived of if taken away to a place within the jurisdiction of

the US Court by respondent No.2 ­ her father.   It  was also

contended that in the process of reasoning out the plea taken

by the appellant regarding the circumstances in which she fled

from USA with the minor girl child due to domestic violence

inflicted on her, the said issue has been trivialized. It is

contended  that  as the  marriage  between the  appellant  and

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respondent No.2 was solemnized in New Delhi as per Anand

Karaj ceremony and Hindu Vedic rites, the fact that the

appellant went to the United States to stay with her husband,

would make no difference to her status and nationality, much

less have any bearing on the issue of   best  interest   of  the

minor girl child.  

13.  On the other hand, the respondent No.2 would submit

that the High Court analysed all the relevant aspects of the

matter keeping in mind the legal principles expounded in the

recent  decisions  of this  Court  and recorded its satisfaction

about the best interest  of the minor girl child coupled with the

necessity  of the  minor  girl child to  be  produced before the

Circuit Court of Cook County, Illinois, USA, which had

intimate contact with the minor girl child,   inasmuch as the

minor girl child was born and was domiciled within the

jurisdiction of that Court before she was clandestinely

removed by the appellant to India. It is contended that since

both the father as well as the minor girl child are US citizens

and the mother is a permanent resident of US and domiciled

23

in that country, only the  Courts of that country  will have

jurisdiction to decide the  matrimonial issues between the

parties, including custody of the  minor girl child and  her

guardianship.  Further, at the tender age of about 3 years, the

minor girl child had hardly spent any time in India so as to

suggest that she has gained consciousness in India and thus

it would be in the  best interest of the child to be taken away

to the US. It is contended by respondent No.2 that the High

Court has analysed all the relevant facts before recording the

finding that the  welfare  and best interest  of the  minor  girl

child would be served by returning to United States. As that

finding is based on  tangible material on record as adverted to

by the High Court, this Court should be loath to overturn the

same and, more so, when the High Court has issued directions

to balance the equities and also facilitate return of the minor

child to be produced before the Court of competent

jurisdiction. The directions so issued are no different than the

directions given by this Court in Nithya Anand Raghavan’s

case, (supra).   It is contended by respondent No.2 that this

24

Court may primarily examine the directions issued by the High

Court and if necessary, issue further directions to safeguard

the interest of the appellant, but in no case should the plea

taken by the appellant, that the minor girl child should not

return to US, be accepted. It is contended that the sole

consideration in a proceeding such as this, must be to

ascertain the welfare of the minor girl child and not to

adjudicate upon the rights of the father or the mother. While

doing so, the Court may take into account all such aspects to

ascertain  as to  whether  any  harm would  be  caused to the

minor child or for that matter, has been caused in the past

during  her  stay in  US.  From  the  order  passed by the  US

Court, it is evident that the custody of the minor girl child with

the appellant had become unlawful and for which reason, this

Court in exercise of its jurisdiction for issuance of a writ of

habeas corpus, must direct the appellant to give the custody of

the  minor  girl child to  her father. It is contended  that the

argument regarding health or personal matters raised by the

appellant are only arguments of causing prejudice and should

25

have no bearing for answering the matters in issue,

particularly in the context of the equitable directions passed

by the High Court.   The Court must keep in mind that the

minor girl child is presently staying in India without a valid

Visa after her Visa obtained for travelling to India expired.  The

respondent No.2 would submit that no interference with the

directions issued by the High Court is warranted in the fact

situation of the present case.  

14. We have heard Ms. Malavika Rajkotia,  learned counsel

appearing for the appellant and Ms. Meenakshi Arora, learned

senior counsel appearing for the respondent No.2.  

15. We shall  first advert to the analysis made by the High

Court in respect of the contentious issues. That can be

discerned from paragraph 102 onwards of the impugned

judgment.  The High Court was conscious of the fact that  it

must first examine the issue regarding the welfare and best

interest   of the minor child. It noted that the minor girl child

was about 3 years when the writ petition for habeas corpus

26

was preferred on 1st  February, 2017. It  then noted that the

respondent No.2 – father of the minor girl child had acquired

citizenship of the USA in 2005 and holds an American

Passport.  He  is living in the  USA since  1994 and  is thus

domiciled in the USA. He had acquired a Bachelors’ degree in

Economics and obtained MBA qualification from the University

of Chicago.  He was an Education Software Entrepreneur. The

appellant wife is the biological mother of the minor child M,

who has acquired permanent resident status of the USA i.e.

Green Card and had also applied for American citizenship on

2nd December, 2016. The respondent No.2 and appellant were

classmates during their schooling and revived their contacts in

2000. Eventually, they decided to get married and thereafter

reside in USA where the respondent No.2 had his work place

and  home.  The  marriage  was  solemnized in  New Delhi in

India on 31st October, 2010 as per Anand Karaj ceremony, and

Hindu Vedic  rites in the presence of the elders of  both the

families.  After the appellant arrived  in USA,  they performed

27

civil  marriage before the competent  Court in  USA on 19 th

March, 2011.  

16. The High Court adverted to the accomplishment of the

appellant in her education and occupation.  The High Court

noted that the couple started their  matrimonial life in the

United  States  and lived  as  a couple in that country.  They

made the United States their home and their entire married

life, except the duration during which they were on short visits

to India, had been spent in the USA.  They gave birth to a girl

child  M in  USA on  15th  February, 2014 at  North  Western

Memorial Hospital, Chicago, Illinois, USA. The minor child M

is  a  US citizen  by  birth  and  grew  up there  until she  was

clandestinely removed by the appellant to India on 25th

December, 2016. The minor child had, in fact, started

attending pre­school in Chicago and had a full time schedule

at school from August, 2016. Thus, the mental development of

M while she was in USA till the end of 2016, had taken place

to such an extent that she was very well aware and conscious

of her surroundings. She was perceiving and absorbing from

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her surroundings and communicated not only with her

parents, but also with her other relatives, her peers at the pre­

school,  her instructors, teachers and other care givers.  The

American way of life and systems were already in the process

of being learnt and experienced by M when she came to India

in December, 2016. The environment which M was

experiencing during her growth was the natural environment

of  Chicago,  USA.  Both her parents  were looking after her

proper  upbringing. The  Court also  noted that the paternal

grandparents of the minor child M were visiting and

interacting with her. The Court then adverted to the decisions

in Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and

Anr.4, Aviral Mittal Vs. State5, Shilpa Aggarwal Vs. Aviral

Mittal and Anr.6, Dr. V. Ravi Chandran Vs. Union of India

& Ors.7, and Nithya Anand Raghavan (supra), to opine that

the Court in the US seemed to be the most appropriate Court

to decide the issue of custody of M, considering that it had

4  (1984) 3 SCC 698 5  (2009) 112 DRJ 635 6  (2010) 1 SCC 591 7   (2010) 1 SCC 174

29

intimate contact with the parties and the child. It went on to

observe that it was neither inclined   nor in a position to

undertake a detailed enquiry into aspects of custody, visitation

and co­parenting of the minor child in the facts and

circumstances of the case, considering all the events unfolded

in, circumstances developed in and evidences were located in

the USA. After having said this, it  examined the compelling

reasons disclosed by the appellant to dissuade the Court from

issuing directions for return of M to her native country and the

environment where she was born and being brought up. That

analysis has been done in paragraph 114 onwards. The High

Court considered the grievances of the appellant in

paragraphs 114 to 117 in the following words:  

“114. The allegations of respondent no.2 against the petitioner and his mother are  that the petitioner’s mother follows a strict eco­friendly lifestyle and imposes the same on the couple, which even caused chronic backache to the respondent  since  she  was forced to  sleep  on  a  hard eco­ friendly mattress. She claim that all her day to day affairs were influenced by the lifestyle of her mother in law, such as not using plastic products, non stick cookware, personal care products etc. The respondent had no voice in the matter.  The petitioner took minimal interest in household affairs, while his mother interfered in the lives of the parties

30

by tracking their schedules. The petitioner and his mother did not respect the respondents privacy and the plan of the parties to bear a child  were disclosed to the petitioner’s mother in advance. She even imposed lifestyle changes upon the respondent. The petitioner’s mother also did not permit the respondent to maintain a secular household. She was not permitted to celebrate both Sikh and Hindu festivals and the petitioner insisted that they celebrate only Sikh festivals. Respondent no.2 states that she was diagnosed with a grave’s disease in October 2014. The petitioner and his mother insisted that the respondent undergoes surgery rather than taking medication, since medication would have made it difficult for her to conceive in future. She claims that the petitioner even threatened her with divorce in case she prioritised  her own  health  at the cost of expanding their family. The respondent makes several other allegations against the petitioner and his mother complaining of cruelty and indifference on their part towards her.  

115. The above allegations per se do not suggest any grave undesirable conduct or deviant behavior on the part of the petitioner, or his mother qua the child M – even if they were to be assumed to be true for the time being. The allegations even remotely, not such as to suggest that the minor child M may be exposed to any adversity, harm, undesirable influence, or danger if she were to be allowed to meet them or spend time with them in USA. There is nothing to suggest that the petitioner – father of M, or her grandmother would leave a bad and undesirable influence on M. These allegations are not such as to persuade this Court not to send the child M back to her country of origin and initial upbringing. On the contrary, the petitioner appears to be an educated  person  who is gainfully  managing  his  business, and the photographs on record show healthy bonding between M and her father. He also appears to have actively participated in the upbringing of M – if the averments made by him in his petition are to be believed. In fact, respondent no.2  had  also  expressed her  willingness to let  M  interact with the petitioner and to allow him visitation rights, which

31

would not have been the case if she considered him to be a bad influence on, or a potential threat to her daughter. The fact that the petitioner’s mother is a pediatrician, in fact, is a reassuring fact that M would be taken good care of medically in her tender years. The photographs filed by the petitioner along with the petition show M to be having a healthy and normal upbringing while she was in USA. She is seen enjoying the love, care and company of  her parents and others –  including children of her age. There is no reason why she should be allowed to be uprooted from the environment in which she was naturally growing up, and to be retained in an environment where she would not have the love, care and attention of her father and paternal grandparents, apart from her  peers, teachers, school and other care givers who were, till recently, with her.  

116. From the allegations  made by respondent No.2, it appears  that  she may have had  issues of living with and adjusting with the petitioner and his parents – particularly the mother­in­law. However, there is absolutely nothing placed on record to even remotely suggest that so far as the petitioner is concerned, his conduct qua M and his presence with M, or for that matter, even the grandparents, could be said to be detrimental to or harmful for  M. It certainly cannot be said that if M were to be returned to her place of origin where she spent the initial three years of  her  life  – considering that those three years constitute  more than 3/4th of her entire existence on this planet till date, would be detrimental to her interest in any manner whatsoever.  

117. The parties started their married life  in USA, and as clearly appears from their conduct, their mutual commitment  was to  spend  their  married life  and  to raise their children in USA. There is absolutely nothing to suggest that the parties mutually ever agreed to or intended to shift from  their  place  of residence to  a  place in India, though respondent no.2 may have unilaterally so desired. In such a situation, in our view, respondent No.2 cannot breach her maternal commitment  without any valid justification and

32

remain in return to India  with  M  –  who is an  American citizen and would, obviously, be attached to her father and grandparents; her home; her Nanny; her teachers & instructors and her peers and friends, all  of whom are  in USA.”

17. After  having said this, the  High  Court considered the

argument of the appellant that she was the primary care giver

qua M but disregarded the same by observing that that alone

cannot be made the basis to reject the prayer for return of the

minor girl child to her native country, and more so, when the

minor girl child deserves love, affection and care of her father

as well. The Court found that nothing prevents the appellant

from returning to the USA if she so desires. Further, the fact

that the minor girl child would make new friends and have

new care givers and teachers in India at a new school, cannot

be the basis to deny her the love and affection of her biological

father or parenting of grandparents which was equally

important for the grooming and upbringing of the child.   The

Court then went on to notice that the expression “best interest

of child” is wide in its connotation and cannot be limited only

to love and care of the primary care giver i.e. the mother. It

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then adverted to the provisions of the Juvenile Justice (Care

and Protection of Children) Act, 2015, while making it clear

that  it was conscious of the fact that the said Act may not

strictly apply to the case on hand for examining the issue of

best interest  of the child. In paragraphs 124  to 126 of the

impugned judgment, it went on to observe thus:     

“124. Thus, all decisions regarding the child should be based on primary consideration that they are in the best interest of the child and to help the child to develop to full potential. When involvement of one of the parents is not shown to be detrimental to the interest of the child, it goes without saying that to develop full potential of the child, it is essential that the child should receive the love, care and attention of both his/ her parents, and not just one of them, who may have decided on the basis of his/ her differences with the other parent, to re­locate  in a different country.  Development of full potential of the child requires participation of both the parents. The child, who does not receive the love, care and attention of both the parents, is bound to suffer from psychological and emotional trauma, particularly if the child is small and of tender age. The law also recognizes the fact that the primary responsibility of care, nutrition and protection of the child falls primarily on the biological family. The “biological family” certainly cannot mean only one of the two parents, even if that parent happens to be the primary care giver.  125. The JJ Act encourages restoration of the child to be re­ united with his family at the earliest, and to be restored to the same socio­economic and cultural status that he was in, before being removed  from that  environment,  unless such

34

restoration or repatriation  is  not in his  best interest.  The present is not a case where respondent No.2 fled from USA or  decided  to  stay  back  in India  on account  of  any such conduct of the petitioner which could be said to have been detrimental to her own interest, or the interest of the minor child M. The decision of respondent  No.2  to stay back  in India is  entirely  personal to  her,  and her  alone. It is  not based on consideration of the best welfare of the minor child M. In fact, the best interest of the child M has been sidelined by respondent no.2 while deciding to stay back in India with M.  

126. Pertinently, respondent No.2 in her statement in response to the missing person report made by the petitioner on 14.01.2017 vide DD No.20B dated 14.01.2017 at PS – Vasant Kunj (South), New Delhi, inter alia, stated that ‘the parties came to New Delhi, India with their daughter M on 20.12.2016. She further stated that during this time, I realized that I do not want to continue with his suppressed marriage and file for divorce and custody petition against K G in the  Hon’ble Court Sh. Arun  Kumar Arya, Principle Judge,  Family  Courts,  Patiala  House,  New Delhi  via  HMA No.27/17……’. Thus, it appears from the statement of respondent No.2 that the realization that she did not want to continue in her marriage dawned upon her only when she came to India, and it is not that when she left the shores of USA in December 2016, she left with a clear decision in her mind that she would not return to USA for any specific and justifiable reason.”  

18. Reference was then made to the provisions of the

Convention on the Rights of the Child adopted by the General

Assembly of the United Nations dated 20th  November, 1989,

which was ratified by the Government of India on 11th

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December,  1992,  and the resolution  by the  Government  of

India issued by the Ministry of Human Resource Development

vide  Resolution No.6­15/98 C.W.,  dated 9th  February,  2004

framing the “National  Charter for  Children,  2003” and the

Court observed in paragraph 138  as follows:

“138. Thus, best welfare of the child, normally, would lie in living  with  both  his/  her  parents in  a  happy, loving  and caring environment, where the parents contribute to the upbringing of the child in all spheres of life, and the child receives emotional, social, physical and material support ­ to name a few. In a vitiated marriage, unfortunately, there is bound to be impairment of some of the inputs which are, ideally, essential for the best interest of the child. Then the challenge posed before the Court would be to determine and arrive at an arrangement,  which offers the best possible solution in the facts and circumstances of a given case, to achieve the best interest of the child.”

19. On a perusal of the impugned judgment, it is noticed that

the High Court has taken note of  all the relevant decisions

including the latest three­Judge Bench decision of this Court

in  Nithya Anand Raghavan’s case, (supra), which has had

occasion to exhaustively analyse the earlier decisions on the

subject  matter under consideration. The exposition in the

36

earlier decisions has been again restated and re­affirmed  in

the subsequent decision of this Court in  Prateek Gupta Vs.

Shilpi Gupta & Ors., (supra).  Let us, therefore, revisit these

two decisions.   In paragraph 40 of the  Nithya Anand

Raghavan’s case, (supra), this Court observed thus:

“40. The Court has noted that India is not yet a signatory to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction”.  As regards the non­ Convention countries, the law is that the court in the country to which the child has been removed  must consider the question on merits bearing the welfare of the child as of  paramount  importance and reckon the order of the foreign court as only a factor to be taken into consideration, unless the court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare.  In exercise of summary jurisdiction, the court must be satisfied and of the opinion that the proceeding instituted before it was in close proximity and filed promptly after the child was removed  from his/her  native  state  and brought  within  its territorial jurisdiction, the child has not gained roots here and further that it will be in the child’s welfare to return to his native state because of the difference in language spoken or social customs and contacts to which he/she has been accustomed or such other tangible reasons. In such a case the court need not resort to an elaborate inquiry  into the merits of the paramount welfare of the child but leave that inquiry to the foreign court by directing return of the child. Be it noted that in exceptional cases the court can still refuse  to issue direction  to return  the  child to the native state and more particularly in spite of a pre­existing order of the foreign court in that  behalf, if it is satisfied that the child’s return may expose him to a grave risk of harm. This means that the courts in India, within whose jurisdiction the minor has been brought must “ordinarily” consider the

37

question on merits, bearing in mind the welfare of the child as of paramount importance whilst reckoning the pre­ existing order of the foreign court if any as only one of the factors and not get fixated therewith. In either situation—be it a summary inquiry or an elaborate inquiry—the welfare of the child is of paramount consideration.  Thus, while examining the issue the courts in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical  or  psychological  harm or  otherwise  place the child in an intolerable position or if the child is quite mature and  objects to its return.  We are in respectful agreement with the aforementioned exposition.”

(emphasis supplied)

Again in paragraph 42, the Court observed thus:

“42. The consistent view of this Court is that if the child has been brought within India, the courts in India may conduct: (a) summary inquiry; or (b) an elaborate inquiry on the question of custody. In the case of a summary inquiry, the court may deem it fit to order return of the child to the country from  where  he/she  was removed  unless such return is shown to be harmful to the child.  In other words, even in the matter of a summary inquiry, it is open to the court to decline the relief of return of the child to the country  from where he/she was removed  irrespective  of  a pre­existing order of return of the child by a foreign court. In an  elaborate inquiry, the  court is  obliged to  examine the merits as to where the paramount interests and welfare of the child lay and reckon the fact of a pre­existing order of the foreign court for return of the child as only one of the circumstances.  In either case, the crucial question to be considered  by  the court (in the  country to  which  the child is removed) is to answer the issue according to the child’s welfare. That has to be done bearing in mind the totality of facts and circumstances of each case independently. Even on close scrutiny of the several decisions pressed before us, we do not find any contra view in this behalf.  To put  it  differently, the principle  of comity of courts cannot be given primacy or more weightage

38

for deciding the matter of custody or for return of the child to the native State.”

(emphasis supplied)

It will be apposite to also advert to paragraphs 46 & 47 of the

reported decision, which read thus:

“46.  The High Court while dealing with the petition for issuance of a  writ of habeas corpus concerning a  minor child, in a given case,  may  direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in  each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.

47.  In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough  to  note that the  private respondent  was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can  be  presumed that the  custody  of the  minor  with his/her mother is lawful. In such a case, only in

39

exceptionable situation, the custody of the minor  (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction.  Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child.”

(emphasis supplied)

Again in paragraph 50, the Court expounded as under:  

“50. The High Court in such a situation may then examine whether the return of the  minor to his/her native state would be in the interests of the minor or would be harmful. While doing so, the High Court would be well within its jurisdiction if satisfied, that having regard to the totality of the facts and circumstances, it would be in the interests and welfare of the minor child to decline return of the child to the country from where he/she had been removed; then such an order  must  be  passed  without being fixated with the factum of an order of the foreign court directing return of the child within the stipulated time, since the order of the foreign court must yield to the welfare of the child. For answering this issue, there can be no straitjacket formulae or mathematical exactitude.  Nor can the fact that the other parent had already approached the foreign court or was successful  in getting an order from the foreign court for production of the child, be a decisive factor. Similarly, the parent having custody of the minor has not  resorted to  any substantive proceeding for custody of the child, cannot whittle down the overarching principle of the best interests and welfare of the child to be considered by the Court. That ought to be the paramount consideration.”

(emphasis supplied)

In paragraphs 67 and 69, the Court propounded thus:

40

“67. The facts in all the four cases primarily relied upon by Respondent 2, in our opinion, necessitated the  Court to issue direction to return the child to the native state. That does not mean that in deserving cases the courts in India are denuded from declining the relief to return the child to the native state  merely  because of  a  pre­existing  order  of the foreign court of competent jurisdiction. That, however, will have to be considered on case to case basis — be it in a summary inquiry or an elaborate inquiry. We do not wish to dilate  on  other reported judgments,  as it  would result in repetition of similar position and only burden this judgment.

xxx xxx xxx

69.  ……………  The summary jurisdiction to return the child  be  exercised in  cases  where the  child  had  been removed from its native  land and removed to another country where, may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, for these are all acts which could psychologically disturb the child.  Again the summary jurisdiction be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child.”

(emphasis supplied)

20. At this stage, we deem it apposite to reproduce

paragraphs 70 and 71 of the reported judgment, which may

have some bearing on the final order to be passed in this case.

The same read thus:

“70. Needless to observe that after the minor child (Nethra) attains the age of majority, she would be free to exercise her

41

choice to go to the UK and stay with her father. But until she attains majority,  she should remain  in the custody of  her mother unless the court of competent jurisdiction trying the issue of custody of the child orders to the contrary. However, the father must be given visitation rights, whenever he visits India. He can do so by giving notice of at least two weeks in advance intimating in writing to the appellant and if such request is received, the appellant must positively respond in writing to grant visitation rights to Respondent 2 Mr Anand Raghavan (father) for two hours per day twice a week at the mentioned venue in Delhi or as may be agreed by the appellant,  where the appellant or her representatives are necessarily present at or near the venue. Respondent 2 shall not be entitled to, nor make any attempt to take the child (Nethra) out from the said venue. The appellant shall take all such steps to comply with the visitation rights of Respondent 2, in its letter and spirit. Besides, the appellant will permit Respondent 2 Mr Anand Raghavan to interact with Nethra on telephone/mobile or video conferencing, on school holidays between 5 p.m. to 7.30 p.m. IST.

71. As mentioned earlier, the appellant cannot disregard the proceedings instituted before the UK Court. She must participate in those proceedings by engaging solicitors of her choice to espouse her cause before the High Court of Justice. For that, Respondent 2 Anand Raghavan will bear the costs of litigation and expenses to be incurred by the appellant. If the appellant is required to appear in the said proceeding in person and for which she is required to visit the UK, Respondent  2  Anand Raghavan will bear the  air fares or purchase the tickets for the travel of appellant and Nethra to the UK and including  for  their  return journey to  India as may be required. In addition, Respondent 2 Anand Raghavan will make all arrangements for the comfortable stay of the appellant and her companions at an  independent place of her choice at reasonable costs. In the event, the appellant is required to appear in the proceedings before the High Court of  Justice in  the  UK,  Respondent  2  shall  not initiate  any coercive process against her which  may result in penal consequences for the appellant and if any such proceeding is already pending, he must take steps to first  withdraw the same and/or undertake before the court concerned not to pursue  it  any further.  That will  be condition precedent  to

42

pave way for the appellant to appear before the court concerned in the UK.”  

21. In the subsequent judgment of two Judges of this Court

in  Prateek Gupta  (supra), after analysing all the earlier

decisions, in paragraphs 49 to 51 the Court noted thus:

“49.  The gravamen  of the judicial enunciation on the issue of repatriation of a child removed from its native country is clearly founded on the predominant imperative of its overall well­being, the principle of comity of courts, and the doctrines of “intimate contact and closest concern” notwithstanding.  Though the principle of comity of courts and the aforementioned doctrines qua a foreign court from the territory of which a child is removed are factors which deserve notice in deciding the issue of custody and repatriation of the child, it  is no longer res integra that the ever­overriding determinant would be the welfare and interest of the child. In other words, the invocation of these principles/doctrines has to be judged on the touchstone of myriad attendant facts and circumstances of each case, the ultimate live concern being the welfare of the child,  other  factors being acknowledgeably subservient thereto.  Though in the process of adjudication of the issue of repatriation, a court can elect to adopt a summary enquiry and order immediate restoration of the child to its  native  country, if the  applicant/parent is prompt and alert in his/her initiative and the existing circumstances ex facie justify such course again in the overwhelming exigency of the welfare of the child, such a course could be approvable in law, if an effortless discernment of the relevant factors testify irreversible, adverse and prejudicial impact on its physical, mental, psychological, social, cultural existence, thus exposing it to visible, continuing and irreparable  detrimental and nihilistic attenuations.  On the other hand, if the applicant/parent is slack and there is a considerable time lag between the removal of the child from the native country

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and the steps  taken  for its  repatriation thereto, the court would prefer an elaborate enquiry into all relevant aspects bearing on the child, as meanwhile with the passage of time, it expectedly had grown roots in the country and its characteristic milieu, thus casting its influence on the process of its grooming in its fold.

50.  The doctrines of ‘intimate contact’ and ‘closest concern’ are of persuasive relevance, only when the child is uprooted from its native country and taken to a place to encounter alien environment, language, custom, etc. with the portent of mutilative bearing on the process of its overall growth and grooming.

51.  It  has  been  consistently  held that there is  no forum convenience in  wardship jurisdiction and the peremptory mandate that underlines the adjudicative  mission is the obligation to secure the unreserved welfare of the child as the paramount consideration.”

(emphasis supplied)

Again, in paragraph 53 of the judgment, the Court observed

thus:

“53.  ....  The issue with regard to the repatriation of  a child, as the precedential explications would authenticate has to be addressed not on a consideration of legal rights of the parties but on the sole and preponderant criterion of the welfare of the minor.  As aforementioned, immediate restoration  of the  child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not  otherwise.  As it is, a child  of tender years,  with malleable and impressionable mind and delicate and vulnerable physique would suffer serious set­back if subjected to frequent and unnecessary translocation in its formative years. It is thus imperative that unless, the continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged

44

on the touchstone of  overall  perspectives,  perceptions and  practicabilities, it ought  not to be  dislodged and extricated from the environment and setting to which it had got adjusted for its well­being.”

(emphasis supplied)

22. After these decisions, it is not open to contend that the

custody of the female minor child with her biological mother

would be unlawful, for there is presumption to the contrary. In

such a case, the  High Court whilst exercising jurisdiction

under Article 226 for issuance of a writ of habeas corpus need

not  make any further enquiry but if it is called upon to

consider the prayer for return of the minor female child to the

native country, it has the option to resort to a summary

inquiry or an elaborate inquiry, as may be necessary in the

fact situation of the given case.  In the present case, the High

Court noted that it was not inclined to undertake a detailed

inquiry. The question is, having said that whether the High

Court took  into  account irrelevant  matters for recording its

conclusion that the minor female child, who was in custody of

her biological mother, should be returned to her native

country. As observed in  Nithya  Anand  Raghavan’s case

45

(supra), the Court must take into account the totality of the

facts and circumstances whilst ensuring the best interest of

the minor child. In  Prateek Gupta’s case  (supra), the Court

noted that the adjudicative mission is the obligation to secure

the unreserved welfare of the child as the paramount

consideration. Further, the doctrine of “intimate and closest

concern” are of persuasive relevance, only when the child is

uprooted from its native country and taken to a place to

encounter alien environment, language, custom etc. with the

portent  of  mutilative  bearing  on the  process  of its overall

growth  and  grooming.  The  High  Court in the  present case

focused primarily on the grievances of the appellant and while

rejecting those grievances, went on to grant relief to

respondent No.2 by directing return of the minor girl child to

her native country.  On the totality of the facts and

circumstances  of the  present  case, in  our  opinion, there is

nothing to indicate that the native language (English) is not

spoken or the child has been divorced from the social customs

to which she has been accustomed. Similarly, the minor child

46

had just entered pre­school in  the USA before she came to

New Delhi along with her mother. In that sense, there was no

disruption of  her  education or  being  subjected to  a foreign

system of education likely to psychologically disturb her. On

the other hand, the minor child M is under the due care of her

mother and maternal grand­parents and other relatives since

her arrival in New Delhi. If she returns to US as per the relief

claimed by the respondent No.2, she would inevitably be

under the care of a Nanny as the respondent No.2 will be away

during the day time for work and no one else from the family

would be there at home to look after her. Placing her under a

trained Nanny may not be harmful as such but it is certainly

avoidable.  For, there is likelihood  of the  minor child  being

psychologically disturbed after her separation from her

mother, who is the primary care giver to her. In other words,

there  is  no compelling reason to direct  return of the minor

child M to the US as prayed by the respondent No.2 nor is her

stay in the company of her  mother, along with  maternal

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grand­parents and extended family   at New Delhi, prejudicial

to her in any manner, warranting her return to the US.   

23. As expounded in the recent decisions of this Court, the

issue ought not to be decided on the basis of  rights of the

parties claiming custody of the  minor child but the focus

should constantly remain on whether the factum of best

interest  of the minor child is to return to the native country or

otherwise. The fact that the  minor child will have better

prospects upon return to his/her   native country, may be a

relevant aspect in a   substantive proceedings for grant of

custody of the minor child  but not  decisive to examine the

threshold issues in a habeas corpus petition.  For the purpose

of  habeas corpus petition, the Court  ought  to  focus on the

obtaining circumstances of the minor child having been

removed from the native country and taken to a place to

encounter alien environment, language, custom etc. interfering

with his/her overall growth and grooming and whether

continuance there will be harmful.   This has been the

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consistent view of this Court as restated in the recent three­

Judge Bench decision in  Nithya Anand Raghavan  (supra),

and the two­Judge Bench decision in Prateek Gupta (supra).

It is unnecessary to  multiply other decisions on the same

aspect.  

24. In the present case, the minor child M is a US citizen by

birth. She has grown up in her native country for over three

years before she was brought to New Delhi by her biological

mother (appellant) in December 2016. She had joined a pre­

school in the USA. She had healthy bonding with her father

(respondent  No.2).  Her  paternal  grand­parents  used  to  visit

her in the USA at some intervals. She was under the care of a

Nanny during the day time, as  her parents  were  working.

Indeed, the work place of  her  father  is  near the home. The

biological father (respondent No.2) of the minor child M has

acquired US citizenship. Both father and mother of the minor

child M were of Indian origin but domiciled in the USA after

marriage. The mother (appellant)  is a permanent resident of

49

the USA­Green Card holder and has also applied for US

citizenship. In her affidavit filed before the Delhi High Court

dated 30th November, 2017, she admits that her legal status

was complicated as she has ceased to be an Indian citizen and

her status of citizenship of the USA is in limbo.  

25. Be that as it may, the father filed a writ petition before

the Delhi High Court for issuance of a writ of Habeas Corpus

for production of the minor child and for directions  for her

return to USA without any loss of time. Given the fact that the

parties performed a civil marriage on 19th March, 2011 in the

USA and cohabited in the native country and gave birth to

minor child M who grew up in that environment for at least

three years, coupled with the fact that the father and minor

child M are US citizens and mother is a permanent resident of

USA, the closest contact and jurisdiction is possibly that of the

Circuit Court of Cook County, Illinois, USA. However, we may

not be understood to have expressed any final opinion in this

regard. At the same time, it is indisputable that the appellant

50

and respondent No.2   first got married on 31st October, 2010

as per Sikh rites, i.e. Anand Karaj ceremony, and Hindu Vedic

rites and that marriage was solemnised in New Delhi at which

point of time the appellant was admittedly a citizen of India.

Presently, she is only a Green Card holder (permanent

resident) of the  US. It is, therefore,  debatable  whether the

Family Court at New Delhi, where the appellant has already

filed a petition for dissolution of marriage, has jurisdiction in

that behalf including to decide on the question of custody and

guardianship in respect of the minor child M. For that reason,

it may be appropriate that the said proceedings are decided

with utmost promptitude in the first place before the appellant

is called upon to appear before the US Court and including to

produce the minor child M before that Court.  

26. It is not disputed that the appellant and minor child are

presently in New Delhi and the appellant has no intention to

return to her matrimonial home in the U.S.A. The appellant

has apprehensions and serious reservations on account of her

past experience in respect of which we do not think it

51

necessary to dilate in this proceedings. That is a matter to be

considered by the Court of Competent Jurisdiction called upon

to decide the issue of dissolution of marriage and/or grant of

custody of the minor child, as the case may be. For the time

being,  we  may  observe that the parties  must eschew from

pursuing parallel proceedings in two different countries.  For,

the first marriage between the parties was performed in New

Delhi as per Anand Karaj Ceremony and Hindu Vedic rites on

31st October, 2010 and the petition for dissolution of marriage

has been filed in New Delhi. Whereas, the civil marriage

ceremony on 19th  March, 2011 at Circuit Court of Cook

County, Illinois, USA, was performed to complete the

formalities for facilitating the entry of the appellant into the US

and to obtain US Permanent Resident status.  It is appropriate

that the proceedings pending in the Family Court at New Delhi

are  decided in the first  place including  on the  question  of

jurisdiction of that Court. Depending on the outcome of the

said proceedings, the parties will be free to pursue such other

52

remedies as may be permissible in law before the Court  of

Competent Jurisdiction.  

27. As aforesaid, it is true that both respondent No.2 and

also the minor child M are US citizens. The minor girl child

has a US Passport and has travelled to India on a tenure Visa

which has expired. That does not mean that she is in unlawful

custody of her biological mother.   Her custody with the

appellant would nevertheless be lawful. The appellant has

already instituted divorce proceedings in the Family Court at

Patiala House, New Delhi. The respondent No.2 has also filed

proceedings  before the  Court in the  US for custody of the

minor girl child, directing her return to her natural

environment in the US. In such a situation, the arrangement

directed by this Court in the case of  Nithya Anand

Raghavan (supra), as exposited in paragraphs 70­71, may be

of some help to pass an appropriate order in the peculiar facts

of this case, instead of directing the biological mother to return

to  the  US along with  the  minor girl  child,  so as to  appear

53

before the competent court in the US.  In that, the custody of

the minor girl child M would remain with the appellant until

she  attains the  age of  majority or the  Court of competent

jurisdiction, trying the issue of custody of the  minor  child,

orders to the contrary, with visitation and access rights to the

biological father whenever he would visit India and in

particular as  delineated in the interim  order  passed  by  us

reproduced in paragraph 11 (eleven) above.   

28. A fortiori, dependant on the outcome of the proceedings,

before the Family Court at New Delhi, the appellant may then

be legally obliged to participate in the proceedings before the

US Court  and must take  all  measures to  effectively  defend

herself in the said proceedings by engaging solicitors of her

choice in the  USA  to  espouse  her  cause  before the  Circuit

Court of Cook County, Illinois, USA. In that event, the

respondent No.2 shall bear the cost of litigation and expenses

to  be incurred  by the  appellant to  pursue the  proceedings

before the Courts in the native country. In addition, the

respondent No.2 will bear the air fares or purchase the tickets

54

for the travel of the appellant and the minor child M to the

USA and including their return journey for India, as may be

required.  The respondent  No.2  shall also  make  all suitable

arrangements for the comfortable stay of the appellant and her

companions at an independent place of her choice, at a

reasonable cost. Further, the respondent No.2 shall not

initiate any coercive/penal action against the appellant and if

any such proceeding initiated by him in that regard is

pending, the same shall be withdrawn and not pursued before

the concerned Court any further. That will  be the condition

precedent to facilitate the appellant to appear before the

Courts in the USA to effectively defend herself on all matters

relating to the matrimonial dispute and including custody and

guardianship of the minor child.  

       29. The appellant  and respondent  No.2  must  ensure  early

disposal of the proceedings for grant of custody of the minor

girl child to the appellant, instituted and pending before the

Family  Court at Patiala  House,  New  Delhi. All contentions

available to the parties in that regard will have to be answered

55

by the Family Court on its own merits and in accordance with

law.  

30. We, accordingly, set aside the impugned judgment and

orders of the High Court and dispose of the writ petition in the

aforementioned terms. The appeals are allowed with no order

as to costs.  

.………………………….CJI. (Dipak Misra)

…………………………..….J.           (A.M. Khanwilkar)

…………………………..….J.        (Dr. D.Y. Chandrachud)

New Delhi; July 20, 2018.